March 27, 2014
NEWELL RUBBERMAID INC., Plaintiff,
SANDY STORM, Defendant.
Date Submitted: March 11, 2014
James W. Semple, Esquire and Jason C. Jowers, Esquire of Morris James LLP, Wilmington, Delaware, and Joel R. Hlavaty, Esquire and William P. Dunn, Esquire of Frantz Ward LLP, Cleveland, Ohio, Attorneys for Plaintiff.
John D. Demmy, Esquire of Stevens & Lee, P.C., Wilmington, Delaware, and Gary D. Melchionni, Esquire and Theresa M. Zechman, Esquire of Stevens & Lee, P.C., Lancaster, Pennsylvania, Attorneys for Defendant.
NOBLE, Vice Chancellor
Plaintiff Newell Rubbermaid Inc. ("Newell" or the "Company") seeks a temporary restraining order ("TRO") against a former employee, Defendant Sandy Storm ("Storm"). It wants to enjoin her actions that may violate the non-solicitation and confidentiality covenants of restricted stock unit ("RSU") agreements to which she assented through a third-party website less than a year before her departure from Newell. The core issues involve the enforceability of electronic "clickwrap" agreements and whether RSUs that would not vest for one year constituted adequate consideration for the restrictive covenants when Newell, without cause, could terminate her employment, which would result in the forfeiture of the RSUs.
Agreements may, of course, be made online. A clickwrap agreement is an online agreement that requires a "webpage user [to] manifest assent to the terms of a contract by clicking an 'accept' button in order to proceed." The RSU agreements to which Storm assented and which Newell seeks to enforce were clickwrap agreements.
For the reasons that follow, the Court concludes that clickwrap agreements and the RSUs at issue are enforceable under Delaware law. Newell has more than a colorable claim that Storm has violated the restrictive covenants and that it will suffer irreparable harm in the absence of interim injunctive relief. Thus, Newell's motion for a TRO against Storm is granted.
A Newell subsidiary manufactures and sells infant and juvenile products under its "Graco" brand. Graco sells its products through various retailers, including Target Corporation ("Target"). Storm worked for Newell and its subsidiaries as an employee in various capacities from June 1, 2000, until her voluntary resignation from Newell Sales & Marketing on January 7, 2014. Storm was part of a 17-person office in Minneapolis, Minnesota, which was dedicated to servicing Target.
Storm was promoted to "Director of Sales – Target" effective as of June 1, 2011. As a result of that promotion, she became eligible to receive bonuses in the form of RSUs granted under a document entitled "Newell Rubbermaid Inc. 2010 Stock Plan." To accept the RSUs awarded to her, Storm was directed to a website operated by Fidelity Investments ("Fidelity"), which maintained investment and retirement accounts of Newell's employees. The instructions on Fidelity's website prompted Storm to "accept" the 2011 RSUs by clicking on an "accept" button.Storm states that a pop-up screen then appeared with a lengthy scrolling message which discussed the RSU award and that when she clicked the "accept" button, she thought she was agreeing to certain terms relating specifically to her grant of RSUs. The 2011 award did not contain a confidentiality or non-solicitation provision,  although it did refer to the 2010 RSU plan which explicitly stated that Newell's board of directors, in its sole discretion, could condition the grant of an award upon those provisions.
Around February 2012, Storm again received written notice from Fidelity that she had been awarded additional RSUs, and she again returned to the Fidelity website to accept them. As before, the provisions of this 2012 award did not contain non-solicitation or confidentiality clauses.
In February 2013, Storm was granted her third award of RSUs. She accepted half of the RSUs, which were performance based, on March 18, 2013 and the other half, which were time based, on April 1, 2013. The RSUs, as accepted, were subject to the Newell Rubbermaid Inc. 2010 Stock Plan 2013 Restricted Stock Unit Award Agreement (the "2013 Agreements"). Under these agreements, performance-based RSUs vest three years from the award date and time-based RSUs vest ratably in one-third increments on the first, second, and third anniversaries of the award date. However, if the recipient of the RSUs is terminated from employment by Newell for any reason other than death, disability, or retirement, then the RSUs shall be forfeited and no portion shall vest. The RSUs also grant the recipient a cash equivalent to the value of the dividends she would have received had she been the actual owner of the number of shares of common stock represented by the time-based RSUs in the recipient's account on that date. According to Newell, Storm actually received such cash equivalent awards from dividends paid in 2013.
Screenshots of the Fidelity website which explain how an employee could accept award grants demonstrate that for a person to accept them, she must first select that she will accept the grant from a list of "Unaccepted Grants." She would then navigate to a page which explained more fully how to accept them. Therein, a box, titled "Grant Terms and Agreement, " states that "[y]ou must read your Grant Agreement and review the terms to continue." Below that is a hyperlink to a "Grant Agreement (PDF)" which the user can click to review the agreement. Underneath that hyperlink, a checkbox is accompanied by text which reads: "I have read and agree to the terms of the Grant Agreement." Below that, bold text provides: "To complete your Grant Agreement online, you must read and accept the terms outlined in the document posted above. . . . Your grant acceptance will be final once you click Accept. To cancel the transaction, click the Cancel link." "Previous" and "Accept" buttons appear below as does a link allowing the user to "Cancel." Text under the "Accept" button reads "Submit Grant Acceptance."
In 2013, Storm again clicked the "Accept" button on the Fidelity website and again thought that she was only agreeing to terms relating directly to the RSUs and that her agreement would not impact her post-employment obligations to Newell. Storm recalls that she went through the same steps on the Fidelity website to accept the 2013 Agreements as she went through on previous occasions, which included a "pop-up screen appear[ing] along with a lengthy scrolling message which discussed [her] RSU award."
However, the 2013 Agreements, unlike the prior RSU agreements, contained confidentiality provisions and non-solicitation provisions. The agreements also included language through which the assenting party acknowledged that: (a) the confidentiality and non-solicitation restrictions are reasonable; (b) her ability to work and earn a living are not impaired by the restrictions; and (c) that Newell will suffer substantial damage for which no adequate remedy at law exists as a result of a breach of the restrictions. The 2013 Agreements also contained Delaware choice of law provisions and forum selection clauses requiring that suits between Newell and Storm be litigated in Delaware.
According to Storm, Newell asked other employees more directly to sign post-employment restrictive covenants. For example, employees in Newell's Exton, Pennsylvania office who were similarly situated to Storm were given paper copies of the 2013 RSU agreement which also contained answers to frequently asked questions. Similar restrictive covenants were imposed on higher-level employees, such as Newell's President, through employment contracts, instead of through RSU award agreements. Other employees also agreed to similar provisions in separation agreements.
Newell alleges that Storm was the "face" of Newell at Target for the sale of infant and juvenile goods and that during Storm's last two years of employment she was involved primarily in selling to, developing sales strategy for, and maintaining the Company's relationship with Target. Storm was directly responsible for over $100 million in sales to Target in 2013. Storm had access to confidential information and trade secrets regarding product pricing, marketing strategies, platform innovation, and business incentives, among other things. She also had access to information about Newell's relationship with Target and access to information relating to the sale of Graco products to other retailers and distributors.
When Storm was contemplating leaving Newell, she searched both her personnel file and her "Employee Connections" page, which contains employment-related information such as compensation and company policies, before she resigned. Those efforts did not uncover any restrictions on subsequent employment, and neither location stored a copy of the 2013 Agreements.
Storm's resignation from Newell on January 2, 2014, became effective on January 7, 2014. Storm, during her exit interview, stated that she was making a "lateral" move to a new employer in the "baby" industry. In January, Newell sent Storm two letters reminding her that she had assented to confidentiality and non-solicitation provisions in the 2013 Agreements. Storm began working for Artsana USA, Inc. ("Artsana") on January 20, 2014. Artsana is a direct Newell competitor and sells infant and juvenile products under the brand name "Chicco, " some of which are sold through Target. Newell also sent a letter to Artsana advising it of Storm's obligations under the 2013 Agreements. Newell also alleges that Storm, on December 17, 2013, solicited two coworkers at Newell to leave it and to work for another company which sells children's furniture, although those co-workers did not resign from Newell.
A TRO has two purposes: to protect the status quo and to prevent imminent and irreparable harm from occurring before a preliminary injunction hearing or the final resolution of a matter. A TRO may be issued when the movant demonstrates that: (1) it has a colorable claim against the defendant; (2) it would be irreparably injured without interim injunctive relief; and (3) the balance of hardships tips in its favor.
Newell argues it is entitled to a TRO because it has enforceable agreements with Storm in which she agreed to confidentiality and non-solicitation provisions. It asserts that Storm either has breached, or inevitably will breach, the terms of those agreements during her employment in a sales position for a competitor's baby products brand. Because of the difficulties of ascertaining the damages from such breaches, Newell seeks a TRO enjoining Storm from soliciting Newell customers, soliciting Newell employees, and divulging or using Newell's confidential information or trade secrets.
Storm argues that if the party seeking a TRO has "had an opportunity to develop evidence and present a more complete record" from which the Court can make a more informed judgment concerning the merits of the case, the Court should apply a standard more akin to that of a preliminary injunction and determine whether there is a probability of success on the merits. Storm argues that, because Newell delayed filing its TRO application until February 28, 2014, and knew of her departure in early January, this higher standard should apply.
However, Newell points out that Storm was unwilling to reveal which company she would work for after resigning from Newell and part of its delay in filing suit was related to identifying Storm's new employer. Newell also asserts that part of its delay was brought about by its desire to seek an accommodation with Storm. Because both of these reasons for delay are reasonable and the delay has not resulted in a materially superior factual record, the Court concludes that the typical colorable claim standard should apply.
Finally, this motion also presents a novel question for this jurisdiction, involving the enforceability of agreements which are assented to online, such as the 2013 Agreements. Another novel question addresses whether RSU grants are sufficient consideration if the employer is able to terminate the employee at will and thereby cause the employee to lose her award.
A. Did Storm Assent to the Post-Employment Covenants in the 2013 Agreements?
Newell argues that clickwrap agreements, such as the 2013 Agreements that Storm accepted, are routinely recognized by courts and thus Storm's belief that the 2013 Agreements were like earlier RSU agreements to which she had assented does not create a defense to enforcement. Storm counters that the parties to the 2013 Amendments did not mutually assent to their terms because of Newell's failure to indicate on the Fidelity website that Storm was modifying her post-employment rights.
"A contract is valid if it manifests mutual assent by the parties and they have exchanged adequate consideration." The use of the internet as the vehicle for contract formation "has not fundamentally changed the principles of contract."The "threshold issue is the same: did the [party who assented online] have reasonable notice, either actual or constructive, of the terms of the putative agreement and did [that party] manifest assent to those terms."
Storm voluntarily accepted the RSU awards she received in 2013, and she had reasonable notice that she was manifesting her acceptance of the 2013 Agreements by clicking "Accept" on the Fidelity web portal. Screenshots documenting how employees accept the RSU awards on the Fidelity website demonstrate that a user would have to click a box next to a sentence in bold reading: "I have read and agree to the terms of the Grant Agreement." A link to the Grant Agreement (PDF), appeared above the checkbox. Finally, below the check box and above the "Accept" button, an additional instruction was present, in bold, which read: "To complete your Grant Agreement online, you must read and accept the terms outlined in the document posted above. . . . Your grant acceptance will be final once you click Accept. To cancel this transaction, click the Cancel link." These are clear terms that would place a user on actual notice that she was assenting to an agreement.
Storm relies heavily on Schnabel v. Trilegiant Corp., which states that "the mere acceptance of a benefit . . . may constitute assent, but only where the 'offeree makes a decision to take the benefit with knowledge [actual or constructive] of the terms of the offer . . . .'" She seeks to have the Court conclude that "[a]n offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he is unaware, contained in a document whose contractual nature is not obvious." However, Schnabel considered an arbitration provision which was emailed to parties after enrolling in an online service and thus is more focused on whether later-provided terms are part of an agreement. Here, Storm accepted a benefit from her employer, additional RSUs, which she supported with new consideration, such as the post-employment restrictive covenants. Furthermore, the contractual nature of the 2013 Agreements was obvious and the restrictive provisions were not inconspicuous.
Nonetheless, Schnabel's concern with the reasonable expectations of the parties is relevant in the context of contract formation. Storm thus argues that the manner in which she agreed to the restrictive post-employment covenants did not manifest mutual assent or was unconscionable. She contends that her history of reviewing RSU agreements on Fidelity's website did not put her on notice that employment-related covenants might be contained in future agreements and that she had reasonable expectations that the subject matter of such agreements would be limited in scope to matters concerning RSUs. In addition, she argues that Newell's treatment of other similarly situated employees or higher-level employees would have been a more appropriate method of putting her on notice of the content of the 2013 awards.
The Court concludes that Newell's method of seeking Storm's agreement to the post-employment restrictive covenants, although certainly not the model of transparency and openness with its employees,  was not an improper form of contract formation. Storm, to accept her RSUs, was directed to a screen which informed her in several places that she was agreeing to the 2013 Agreements. Storm admits that she clicked the checkbox next to which were the words "I have read and agree to the terms of the Grant Agreement." This functions as an admission that she had the opportunity to review the agreement (even if she now states she did not read it despite her representation that she did) upon which Newell was entitled to rely. Her actions of clicking the checkbox and "Accept" button were manifestations of assent. She even admits that she clicked on the hyperlink which contained the restrictive covenants when she states that the procedures for accepting the 2013 Agreements were the same as the earlier RSU awards she accepted which included a pop-up screen with a "lengthy scrolling message which discussed [her] RSU award." Storm thus assented after being provided with, and after acknowledging, actual notice.
It is not determinative that the 2013 Agreements were part of a lengthy scrolling pop-up. Storm's failure to review fully the terms (on a 10-page readily accessible agreement) to which she assented also does not invalidate her assent. A party may assent to an agreement on the internet without reading its terms and still be bound by it if she is on notice that she is modifying her legal rights, just as she may with a physical written contract. The Court also will not conclude that Storm was entirely helpless or that Newell lacked a justification for seeking such restrictions. She was an experienced employee who managed a significant client relationship worth over $100 million annually and Newell apparently believed the retention of her services merited RSU grants for three years.
Storm is understandably unhappy that she did not read the 2013 Agreements; however, she was presented with a fair opportunity to do so, opened up the appropriate pop-up from which she could do so, and even indicated through the checkbox that she did so. She altered her post-employment rights in a manner she appears to regret now, but it was her choice to modify her rights without fully investigating the terms to which she agreed.
Furthermore, there is nothing inherently improper about conditioning the grant of RSUs on restrictive covenants. The plan upon which her earlier RSU agreements were based and which they explicitly referenced provided that Newell might condition future awards on restrictive covenants. Thus, to the extent Storm argues she read earlier RSU documentation, but not the 2013 Agreements, she was on notice that such a change could later be included.
In sum, the 2013 Agreements were validly assented to and created, assuming adequate consideration, an enforceable contract between Storm and Newell. As the Delaware Supreme Court has observed:
It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and if he will not read what he signs, he alone is responsible for his omission.
These principles remain applicable even when two parties utilize technology to distribute agreements and to assent to them online.
B. Was the Consideration for the Non-Competition Covenants Illusory?
Storm next argues that the 2013 Agreements were supported only by illusory consideration and are therefore unenforceable. This is so, she contends, because the 2013 Agreements would cause Storm to forfeit her awards if Newell terminated her, which it could do at its sole discretion and without cause because she was an at-will employee. Storm urges the Court to follow other jurisdictions which reject consideration as illusory if it will be forfeited if the employee is fired before vesting occurs or which otherwise reject this form of consideration as inadequate. She also asserts that the RSUs were awarded before Storm visited Fidelity's website to accept them and that her acts were merely ministerial.
Newell points out that the authority upon which Storm relies to argue that the RSUs were illusory consideration, reached its conclusion in part based on Texas law that, in an at-will employment context, "consideration for a promise, by either the employee or the employer, cannot be dependent on a period of continued employment." Moreover, other authority has concluded that an RSU award was not illusory, even where the units vested over time and the employer could withdraw the award by terminating the employee. Authority also exists which upholds restrictive covenants granted in the context of stock option awards that are entirely at the discretion of the board in an at-will employment context.
Our law permits continued employment to "serve as consideration for an at-will employee's agreement to a restrictive covenant." This principle of our law distinguishes the grounds upon which, for example, Olander's holding was based, although it does not necessarily compel a conclusion that such RSUs are not illusory consideration. However, those cases holding that RSUs awards are not illusory, even if the RSUs may be forfeited through termination without cause, seem to the Court to reach the more sound conclusion.
The Court concludes that the 2013 Agreements are not illusory for two reasons. First, Storm was granted a benefit that held actual value. That value is somewhat contingent, based on certain factors such as the time period in which the units will vest and Storm's likelihood of future employment, but nonetheless is not illusory. Second, Storm's likelihood of future employment, although perhaps not precisely knowable, is likely high in this circumstance. Newell awarded Storm the RSUs because it recognized the value of her contribution to the Company and wanted to incentivize her to remain as one of its employees. Thus, although Storm argues that Newell could fire Storm for any or no reason, doing so was not costless to Newell: it would lose the benefit of a valued employee.
Although the 2013 Agreements contemplate a contingency—some deterioration of the relationship between the employer and the employee—which would then cause the grants to be forfeited, the inclusion of such a contingency does not convert the RSUs into illusory consideration. Moreover, Newell asserts that Storm also received consideration of the cash equivalent of dividends in 2013 and thus has actually received consideration supporting her promises. Thus, independent consideration exists under Storm's awards which cannot be considered illusory.
The Court also will not reject the consideration as inadequate because Delaware courts "limit our inquiry into consideration to its existence and not whether it is fair or adequate." Finally, Storm's claim that her acceptance of the RSUs on the Fidelity website was only ministerial is an unsupported assertion. She has not adequately explained how a contract was formed before she manifested her assent to accept the RSUs. The language of the Fidelity website is at odds with Storm's theory because it is explicit that the grant awards have not been accepted until certain specific actions are taken by the employee through the website. Without a more developed argument or evidence supporting her assertion, the Court reiterates its earlier determination that Storm's clicking of the check box and "Accept" button manifested her acceptance of the 2013 Agreements.
Accordingly, Newell's consideration in support of Storm's promises was not illusory and is adequate. Storm's arguments that the non-competition covenants of the 2013 Agreements are unenforceable are unavailing.
C. Has Newell Demonstrated its Entitlement to a Temporary Restraining Order?
1. Has Newell Stated a Colorable Claim?
The party seeking a TRO "need only state a colorable claim for relief, which is essentially a non-frivolous cause of action." Storm bases her arguments that no colorable claim exists on her position that the 2013 Agreements are not enforceable. Because the Court has concluded otherwise, it rejects Storm's arguments. Furthermore, Storm's brief appears to concede that she has already been in contact with Target during her brief period of employment with Artsana.Such activity is sufficient to state a colorable claim that she is breaching her non-solicitation covenant.
Storm also argues that Newell has not identified with appropriate specificity the trade secrets at issue in the misappropriation claim and that no evidence supports Newell's allegations that it is inevitable that Storm would share with Artsana the information learned during her tenure with Newell. Injunctive relief may be appropriate if evidence exists which casts doubt on the trustworthiness of a former employee, such as Storm, such that disclosure of trade secrets would be inevitable if she were allowed to resume working in a particular area of the industry or if the use or disclosure of confidential information is threatened.
Newell asserts that Storm was responsible for over $100 million in annual sales of Graco products to Target and had access to information about Graco's product line, information regarding current products, new products, services, pricing, business and sales plans, marketing plans, contracts, and customer contacts. Storm also had access to confidential information and trade secrets regarding Newell's and Graco's relationship with and sales to other non-Target customers with which Artsana also does business. Storm is unwilling to acknowledge her obligations to Newell. Finally, Newell again points out that Storm's brief indicates that she has already been in contact with Target during her employment at Artsana. If these allegations are true, they are sufficient to support a colorable claim that confidential information or trade secrets could be disclosed in Storm's role with a direct Newell competitor in the baby and juvenile products industry in violation of her obligations. They also support a colorable claim that Storm has been soliciting Target.
2. Has Newell Demonstrated Irreparable Harm?
Storm argues that Newell cannot make a "clear showing of imminent irreparable harm" because of the vague, conclusory allegations of harm to its relationship with customers and because Storm was only one of 17 employees who worked with Target at Newell. She also contends that Target's representative with both Newell and Artsana recently left Target and thus both companies need to rebuild relationships with Target's new baby products buyer. Finally, she argues that the amount of sales for which she was responsible is less than two percent of Newell's total business and thus the harm is minimal.
It, of course, is not abnormal for this Court to grant injunctive relief to enforce post-employment restrictive provisions. Newell correctly asserts that it has no adequate remedy at law for the value of any business lost to Artsana through Storm's solicitation efforts or for the harm that may arise from disclosure of confidential information or trade secrets. Storm's argument that Target's business represents less than two percent of Newell's total business is unpersuasive; that business is nevertheless worth $100 million and Newell is permitted to protect it. Similarly, even if 16 other employees of Newell remained with it, it may still enforce its rights against a single key employee who departed. Finally, even if both Artsana and Newell must develop new relationships with a key contact at Target, Storm's knowledge of Target's processes and the level of responsibility she formerly held entitle Newell to protect its business from her solicitation efforts.
Moreover, Storm's arguments ignore her assent to Section 14(e)(2) of the 2013 Agreements, in which she agreed that Newell would "suffer substantial damage for which there is no adequate remedy at law due to the impossibility of ascertaining exact money damages" should she breach the restrictive covenants in those sections. Such stipulations as to irreparable harm have been held to be sufficient to establish that element in order to issue preliminary injunctive relief. Thus, the Court concludes that Newell has made a sufficient showing that it will suffer irreparable harm.
3. Does the Balance of Equities Favor Newell?
Storm primarily relies on authority from another jurisdiction to argue that the balance of hardships favors her. However, the balance of the harms appears to favor Newell because Storm is not being asked not to work, or even not to work for a direct competitor, but to acknowledge and comply with those obligations to which she consented under the 2013 Agreements. She is free to continue her employment with Artsana, though she is being asked to honor her agreement, supported by consideration, that she not solicit Target on behalf of a competitor. This is not an undue hardship for Storm to bear.
Furthermore, Storm was responsible for $100 million worth of business with Target. Even if Target's primary contact is no longer employed there and both Graco and Artsana need to develop a new relationship with that key contact's replacement, Storm's institutional knowledge of the client, proximity to it, and the value of the business for which she had responsibility at Graco persuade the Court that Graco would suffer harm if Storm were allowed to apply that knowledge to benefit a direct competitor. The Court concludes that the balance of harms therefore favors Newell.
D. Does Laches Bar Newell's Claim?
Storm further argues that Newell's application for a TRO must be denied because it unreasonably delayed filing this action, resulting in prejudice to Storm. Laches generally requires proof of: "(1) knowledge of a claim by the claimant; (2) unreasonable delay in bringing the claim; and (3) resulting prejudice to the nonmovant." Storm asserts that Newell's two-month delay from the time that it knew of her departure to the time that it brought suit was unreasonable and asserts generally that this prejudiced Storm, apparently because she already has sought employment with Artsana without knowledge that Newell might seek injunctive relief.
As Storm points out, "[a]n unreasonable delay can range from as long as several years to as little as less than one month, but the temporal aspect of the delay is less important than the reasons for it." On these facts, Newell's delay was not unreasonable. It sought through several letters to resolve the matter without judicial intervention until the end of January. Although some additional delay occurred after that time, Newell asserts that, despite its earlier letter to Artsana, it was still uncertain about the identity of Storm's new employer and had not learned that Storm had contacted Target until that point. Newell's delay which resulted from a desire to seek an accommodation or which was motivated by its desire to better understand the factual circumstances underlying its claims was not unreasonable. Newell's claim is therefore not barred by laches.
This result may appear somewhat harsh given Storm's seemingly genuine belief that she had no post-employment restrictive covenants in place with her employer. However, the decision was reached by applying the well-settled principles and conclusions of persuasive authority concerning contract formation on the internet. Unfortunately, Storm finds herself in this position because of her willingness to accept an agreement without reviewing its terms when there should have been no doubt that she was assenting to a valid, enforceable contract. Although the Court sympathizes with the state in which she finds herself, it concludes that parties under Delaware law have the same ability, prevalent in other jurisdictions, which they have with respect to paper agreements: to assent to such agreements even without reading them and to bear the consequences. The Court will enforce such agreements as it would an agreement written on paper.
An implementing order will be entered.